All posts by James

REUTERS | Arnd Wiegmann
March 17, 2014

Ethics for advocates?

Cynics may argue ethics are the last thing advocates need but while lawyers in the UK are highly regulated, the position is less clear in international arbitration. This was one of the topics addressed by Professor John Uff CBE QC in the sixteenth King’s College Construction Law Association (KCCLA) Sweet & Maxwell talk, which took place earlier this month. As he pointed out, advocates in different jurisdictions are subject to different regimes. There is an increasing concern about how advocates behave. This led to the introduction of the IBA Guidelines on Party Representation in International Arbitration (May 2013).

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REUTERS | Alex Domanski
March 12, 2014

Does the court have to sanction all extensions to the litigation timetable?

We are nearly one year into the Jackson reforms, but it would be fair to say that the full implications of the reforms are still being worked out by the courts. How the changes are operating in practice has generated much debate in the legal press, although much of the coverage has focused on the implications the rule changes might have on budgeting and cost recovery. The court’s no nonsense approach is now impacting on a party’s right to rely on expert and witness evidence.

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REUTERS | Yuriko Nakao
March 11, 2014

London and Edinburgh disagree on the application of Article 1 of ECHR to adjudication

My title may not be a very catchy one, but with Westminster and Holyrood currently disagreeing about everything (or so it seems), it certainly is a relevant one. I have talked before about English and Scottish judges taking different approaches to issues and the Court of Appeal’s judgment in Lindum Group v Fernie is another example.

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REUTERS | David Mdzinarishvili
March 11, 2014

Adjudication: reversing the burden of proof?

A contractor and employer are in dispute as to whether a particular item of work constitutes a variation under their contract. The contractor starts an adjudication to resolve the dispute. The claim succeeds and the resulting adjudicator’s award is paid by the employer, who then issues court proceedings to recover the money.

Does the employer have to prove that the adjudicator’s decision was wrong (that the relevant item of work is not a variation), or does the contractor have to prove that it was right (that the relevant item of work is a variation)?

As I will explain, while established wisdom has always been that an adjudicator’s decision should not reverse the burden of proof, recent Court of Appeal comments in Walker Construction (UK) Ltd v Quayside Homes Ltd would appear to cast doubt upon it. Continue reading →

REUTERS | Herwig Prammer
March 4, 2014

Multiple contracts or one contract that was varied? Adjudicators beware of the difference

I have been writing this column long enough to have covered many important cases over the years, although it was Jonathan who looked at Akenhead J’s judgment in Air Design v Deerglen back in early 2009. That case saw the Fiona Trust principles applied to an adjudication clause. It also started the line of authorities dealing with an adjudicator’s jurisdiction and the concept of when “substance and jurisdiction overlap“.

That issue was before the courts again recently, this time in Viridis UK Ltd v Mulalley & Company Ltd. Continue reading →

REUTERS | Heinz-Peter Bader
February 28, 2014

February 2014 digest: Jackson reforms, adjudication and auroras

Wikipedia:

“An aurora (from the Latin word aurora, “sunrise” or the Roman goddess of dawn) is a natural light display in the sky particularly in the high latitude (Arctic and Antarctic) regions, caused by the collision of energetic charged particles with atoms in the high altitude atmosphere (thermosphere).”

February is sometimes described as a bridge between January and March, a month that connects winter to spring. Some days are wet, some dry, most are cold, while others tantalise us with weak sunshine and a sign of spring to come. This year it has just been grey and wet, but milder than usual, with long days of rain. However, as the month came to a close (and it seems that for many parts of the country, it went out with a colourful bang), the rains and flooding thankfully started to dissipate. The effects of this are likely to be felt for a long time to come and we set out a few legal points to help you. Continue reading →

REUTERS | Eric Thayer
February 26, 2014

The wrong side of the tracks: indemnities and asset protection agreements

It is very difficult to procure a construction or engineering project in a city like London without encountering at least one third party with potentially “at risk” assets. Typically, these third parties want their assets protected, measures taken to mitigate the risk of damage and insurance-backed compensation arrangements put in place to cover any conseqeuntial costs or losses should damage occur.

As a result, many third parties (especially statutory undertakers) have finely tuned asset protection agreements (APAs), which usually require compensation for their costs and losses to be on an indemnity basis.  Continue reading →

REUTERS | Carlos Barria
February 25, 2014

Setting the judicial cat amongst the adjudication pigeons

I often wonder what it must be like to be the author of a legal text book, especially one that covers an area like adjudication law, where cases come out of the courts thick and fast. No sooner is a book published that it is out of date as a result of those new cases.

That’s certainly true following HHJ Raynor QC’s judgment in Hillcrest Homes Ltd v Beresford and Curbishley Ltd, which I think is a significant case (covering four important issues). I’m guessing it will appear on multiple occasions in the next edition of Coulson on Construction Adjudication and the like. Continue reading →

REUTERS | Jumana El Heloueh
February 19, 2014

Floods, storms and tempests: what does your contract say?

The human impact of this winter’s extreme weather has been telling. Householders, farmers, businesses small and large have all been affected. Many building sites will be waterlogged, if not flooded, hindering heavy plant access and causing myriad practical issues, if work is to continue. Urgent repair and remediation projects must start straight away, often with teams hurrying to help those in need, while contract terms take a back seat. Although many potential legal issues caused as a result of these events will be solved by time and cool heads, if the weather now improves, legal stock-taking may be one part of your response. Continue reading →

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